What Do Active Shooter Threats Mean for the Standard/Duty of Care?

After the tragic Pittsburgh synagogue shooting that claimed 11 lives, the faith-based community and other gathering places have found themselves left with an almost unfathomable, but inevitably relevant question: “what if a shooting happens here next?”

Subsequently, some areas of the country have observed an uptick in calls for increased religious security, which is warranted in the immediate aftermath of the October 27, 2018 tragedy. This process is the latest in an unfortunately common phenomenon across our country’s public outlets and institutions; an act of mass violence exploits a weakness or loophole in a major establishment (be it a church, school, movie theatre, or concert venue), and suddenly the culture and overall protocol of that establishment must change forever.

In the case of the Pittsburgh shooting, religious sanctuaries are now joining workplaces, concert venues, nightclubs, transit systems, health care facilities, and recreational venues in being faced with a reality in where institutions that are commonly regarded as peaceful are being forced to consider their collective defensive postures. More notably, the Pittsburgh shooting presents a horrible example of “keeping up with the Joneses” in where Synagogues and Jewish Community Centers in cities like New York, Los Angeles, DC, and even suburban Cherry Hill, NJ have had partnerships with local police departments and armed security services to protect services and gatherings for decades. On a national level, the Jewish community has created cutting-edge partnerships through the Secure Communities Networks, Anti-Defamation League and law enforcement partnerships with local Jewish Federations to react to ongoing threats of terrorism and hate crimes.

The fact that the measures deployed in other regions were not in place in such a notable a Temple as the Tree of Life raises questions on the deployment of security best practices and standards for the faith-based community across regional and religious boundaries, which ultimately raises legal questions regarding an institution's duty of care related to security. The once unheard of concept of indiscriminate violent attacks should be forcing workplaces, public venues and special events to examine concepts like entry vetting, security assessment and deployment, heightened security protocols and construction improvements that employ the discipline of Crime Prevention Through Environmental Design (CPTED). This uptick in threats should reflect the ways that we, as a nation, must evolve our thinking to address the ambiguity and nefarious cunning of potential future attacks; it is a burden that is unfair, yet imperative.

However, as is the norm these days with mass shootings, a typical list of broad wedge issues have been brought back into the light as we scramble for answers on how to prevent similar attacks in the future. While it may be too early to accurately assess which protocols will best fit the unique layout of each location, the issue, moving forward, must instead boil down to a blend of taking responsibility for the standard of care related to security and the appropriate level of potential threat detection — just like similar tragedies that have taken place in the last few years.

For now, though, one objective and sobering notion persists: violence of this nature can theoretically occur almost anywhere, and as long as this remains the case, we will not be safe until the threat of liability drives the insurance and management sectors to accept the existence of these threats (the way that Banks did in the first half of the 20th Century), plan appropriately, properly prioritize effective solutions based on facts, and collectively embrace preventative foresight.

No greater example of how legal liability plays into the standard of care regarding security is in the ongoing legal battle surrounding the Las Vegas shooting. On July 16, 2018, MGM Resorts International, owner of the Mandalay Bay Casino & Hotel, filed federal lawsuits against more than 1,000 Las Vegas mass shooting victims in an effort to avoid liability in legal actions related to the gunman who opened fire on an outdoor concert from his Mandalay Bay suite on October 1, 2017, killing 58 concertgoers and injuring hundreds of others. The company, which owns Mandalay Bay and the Route 91 Harvest festival venue, argues that it cannot be held liable for the shooting’s deaths, injuries or other damages, adding that any claims against MGM parties “must be dismissed,” according to complaints filed on October 26, 2018, in Nevada and California.

“Plaintiffs have no liability of any kind to defendants,” the complaints argue.

In their suit, MGM Resorts cited a 2002 Federal act that extends liability protection to any company that uses “anti-terrorism” technology or services that can “help prevent and respond to mass violence.” In this case, the company argues, the security vendor MGM hired for Route 91, Contemporary Services Corp., was protected from liability because its services had been certified by the Department of Homeland Security for “protecting against and responding to acts of mass injury and destruction.”

The lawsuits argue that this protection also extends to MGM, since MGM hired the security company. While these suits do not seek money from victims, they are asking the court to rule on whether the 2002 act is applicable, and if so, determine that future civil lawsuits against the company are not viable.

From the perspective of both an expert witness and subject matter expert in security and the standard of care, this raises an interesting question that may impact case law regarding the application of the 2002 law.

First, while MGM Resorts owned both the hotel and venue, the two may need to be separated in regards to liability pursuant to this incident. Had the shooter attempted a dynamic attack in where he entered the venue from the ground level, regardless of weapon, this claim would likely have merit as the venue had hired approved security at the event. However, the attack had occurred from an elevated position, within the Mandalay Bay Hotel where it is now known that the shooter had spent days bringing large caches of weapons, using service elevators and making unauthorized alterations to the room (constructing his sniper perch). Even in a casino resort, known for an extremely high amount of video surveillance and security guards, the shooter’s pre-event behaviors went unquestioned and unreported to law enforcement.

Therefore, it is arguable within the framework of this complaint that one can ask if the security coverage at Route 91 can offset the liability for the perceived security failures within the Mandalay Bay Hotel.

Second, the application of this law calls into question the nature of the attack. While active shooter incidents are without question, terrifying, did this attack fall into the federal definition of terrorism? The U.S. Code of Federal Regulations (28CFR§0.85) defines terrorism as "the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives." In the Mandalay Bay shooting, the objectives and/or classification of the shooting remains publicly unknown.

While the FBI was called in to assist and is investigating the case, they have not called the Las Vegas mass shooting an act of terrorism because the gunman had no clear motive, and the FBI defines terrorism as an act of terror associated with extremist ideologies of a political, religious, social, racial, or environmental nature. If the conclusion of this case results in no official label of terrorism, then it will remain a case closed by the Clark County Sheriff/Las Vegas Metropolitan Police, and the application of the federal act in question; passed a little over a year after the September 11, 2001 attacks may not be suitable to protect MGM Resorts from litigation.

What is clear, from the perspective of those in the security community, is that practitioners in the age of the active shooter have little room for mistake when suspicious behaviors go unnoticed. Regardless of whether you’re protecting a quiet location or a Las Vegas Hotel & Casino, it’s better to be safe than sorry. Having effective escalation pathways, investigative response plans, and suspicious behavior training specific to your location are necessary tools in the prevention of mass casualty incidents.

Expert # 8635 is a nationally-recognized subject matter expert in public safety and investigations. He has served on academic advisory boards for Pierce College and St. John’s University; as well as serving for six years on the Executive Board of InfraGard, the FBI-coordinated public-private partnership for critical infrastructure protection. He is the former Director, Office of Investigations for North America's largest medical board and previously served in both federal and municipal law enforcement.

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances. Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author (TASA Id#: 8635). Contact marketing@tasanet.com for any questions.

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